11/12

1
2005-2006
Supreme Court of Canada Judgement
Blackwater v. Plint 2005 (excerpts)
SUPREME COURT OF CANADA
Citation: Blackwater v. Plint, [2005] 3 S.C.R. 3, 2005 SCC
58
Date: 20051021
Docket: 30176
The judgment of the Court was delivered by
Legal Glossary
• non-delegable statutory duty: an
obligation that only one body can hold, and
can not delegate
• statute-barred: when an offense occurred
too far in the past to be allowed at trial
• vicarious liability: when one body is liable
for the negligence of another body, even
though the first body was not directly
responsible for the injury.
THE CHIEF JUSTICE —
1. Introduction
1 Are the Government of Canada and the United
Church of Canada (“Church”) liable to Aboriginal students
who attended residential schools operated by them
in British Columbia in the 1940s, 1950s and 1960s? If so,
on what legal basis are they liable, and how should liability
be apportioned between them? Finally, what damages
should be awarded? These are the central questions on this
appeal.
2 The appeal arises from four actions commenced in
1996 by 27 former residents of the Alberni Indian Residential
School (“AIRS”) claiming damages for sexual
abuse and other harm. The children had been taken from
their families pursuant to the Indian Act, S.C. 1951, c. 29,
and sent to the school, which had been established by the
Church’s predecessor, the Presbyterian Church of Canada,
in 1891 to provide elementary and high school education
to Aboriginal children whose families resided in remote
locations on the west coast of Vancouver Island. The
children were cut off from their families and culture and
made to speak English. They were disciplined by corporal
punishment. Some, like the appellant Mr. Barney, were repeatedly
and brutally sexually assaulted.
3 A number of former students, including Mr. Barney,
brought an action for damages for the wrongs they had
suffered. The trial proceeded in two stages; an inquiry into
vicarious liability ((1998), 52 B.C.L.R. (3d) 18 (“1998 decision”))
followed by a further liability and damages assessment
three years later ((2001), 93 B.C.L.R. (3d) 228, 2001
BCSC 997 (“2001 decision”)).
4 The trial judge found that all claims other than
those of a sexual nature were statute-barred. He held a
dormitory supervisor, Plint, liable to six plaintiffs for
sexual assault. He held Canada liable for the assaults on
the basis of breach of non-delegable statutory duty, and
also found that Canada and the Church were jointly and
vicariously liable for these wrongs. He apportioned fault
75 percent to Canada and 25 percent to the Church. The
trial judge awarded Mr. Barney $125,000 general damages
and $20,000 aggravated damages, against the Church and
Canada. In addition, the trial judge awarded Mr. Barney
punitive damages against Plint in the sum of $40,000 plus
a future counselling fee of $5,000. Other plaintiffs were
awarded amounts commensurate with their situations.
5 All the parties appealed to the B.C. Court of Appeal.
The Court of Appeal applied a doctrine of charitable immunity
to exempt the Church from liability and to place
all liability on Canada on the basis of vicarious liability
((2003), 21 B.C.L.R. (4th) 1, 2003 BCCA 671). It expressed
the view that Canada was more responsible than
the Church and in a better position to compensate for
the damage, and concluded that vicarious liability should
not be imposed on the Church. It also granted one of the
plaintiffs, M.J., a new trial, and increased the damages of
two others. The Court of Appeal awarded Mr. Barney an
additional $20,000 for loss of future earning opportunity.
Otherwise, it maintained the differing awards for sexual
abuse.
6 The plaintiff Mr. Barney and the defendant Canada
now appeal to this Court. Mr. Barney alleges errors in the
application of the principles of liability and the assessment
of damages. [...]
7 Canada raises the following issues relating to liability
and fault:
1. Whether in the circumstances of this case the
Court of Appeal erred in granting the Church
Indian Residential Schools & Reconciliation • 49